Steven Office v NEC Transport Operating Industry & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/447/2014
HARARE, 23 JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/447/2014

HARARE, 23 JUNE 2014 &			     CASE NO LC/ORD/H/77/2013

18 JULY 2014

In the matter between:

STEVEN OFFICE							APPLICANT

Versus

NEC TRANSPORT OPERATING INDUSTRY			1ST RESPONDENT

And

SAKUNDA LOGISTICS (PRIVATE) LIMITED		2ND RESPONDENT

Before The Honourable E Muchawa	:	Judge

For the Applicant		B M Machanzi    (Legal Practitioner)

For the 2nd Respondent	 V H Tongoona   (Legal Practitioner)

MUCHAWA J:

This is an application made in terms of section 93 (7) of the Labour Act [Cap 28:01]. That section allows a party to a dispute to apply to the Labour Court for disposal of its dispute where a labour officer issues a certificate of no settlement but it is not possible to refer the dispute for compulsory arbitration for any reason, or a labour officer refuses to issue a certificate of no settlement for whatever reason.

The facts of the matter are that the applicant was employed as a truck driver by the second respondent in or around January 2011. On 4 September 2012, the applicant was charged with having committed acts of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract in terms of S I 15 of 2006. This was in spite of there being a registered code. The applicant was found guilty and dismissed by the disciplinary hearing committee. This decision was confirmed by the internal appeals authority on 11 October 2012. The applicant proceeded to lodge an appeal with the National Employment Council for the Transport Operating Industry (“NECTOI”) on 22 October 2012. The applicant claims to have waited in vain for a response. As a graded employee in terms of the Collective Bargaining Agreement: Transport operating industry S I 67 of 2012, the applicant believes his appeal was properly before the NECTOI.

The applicant seems to have then gone to lodge his complaint before a labour officer in January 2013 and such officer correctly found that he had no jurisdiction as the NEC for Transport Operating Industry were the ones with jurisdiction. Consequently a certificate of settlement before a labour officer was signed.

The application is therefore premised on the refusal by the NECTOI to issue a certificate of no settlement.

The respondent opposes the application on the basis that the applicant lodged its appeal out of time on 17 January 2013 and to the wrong office, the labour officer. I was referred to the certificate of settlement issued by the labour officer.

It seems to me that the respondent misunderstood the basis of the application when filing its notice of response. As I have stated, the applicant is challenging the refusal by NECTOI to issue a certificate of no settlement and equates that to the powers of a labour officer.

At the hearing the respondent sought to expand its grounds of response by raising three points in limine and addressing the merits. I disposed of the first point in limine by condoning the applicant’s late filing of heads of argument.

The second point in limine was that the application is defective in both form and substance. It was argued that such an application relates to a labour officer who should refuse to issue a certificate of no settlement. The applicant was said to have failed to satisfy these requirements as the labour officer in casu did issue a certificate of settlement.

The applicant’s response was that their application relates to a designated agent who has the same status as a labour officer and that the provisions of section 93 (7) of the Labour Act [Cap 28:01] equally applies to matters before designated agents.

Though the applicant did not refer me to the correct legal authority for its assertion, section 63 (3 a) of the Labour Act supports the argument advanced. It states:

“… where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 93 (7) falls under Part XII.

I therefore find that there is no merit in the second point in limine and dismiss it.

The third point in limine is that the nature of the relief sought by the applicant is incompetent and inconsistent with the nature of the application. It is argued that such relief is in line with an application for review or an appeal and not an application in terms of section 93 (7).

In the application before me the applicant seeks that the first respondent be ordered to issue a certificate of no settlement and that the matter be referred to compulsory arbitration. In the heads of argument the applicant is now seeking reinstatement or damages in lieu of reinstatement in line with section 89 (2) (c) of the Act.

The applicant argues that the relief of reinstatement or damages in lieu of reinstatement is competent as this court can deal with an application of this nature and deal with the matter on the merits. A referral back to the NEC which has refused to deal with the matter is said to lead to greater injustice as it is time consuming, cumbersome and expensive.

Section 93 (7)(b)(ii) spells out that the competent orders that this court can make where the dispute to be resolved is one of right are set out in section 89 (2)(c).

The possible orders set out include reinstatement and damages in lieu of reinstatement.

I therefore find that there is no merit in the third point in limine and consequently dismiss it.

The matter should proceed to be argued on the merits.

IT BE AND IS HEREBY ORDERED THAT:

The points in limine be and are hereby dismissed.

The Registrar should proceed to set down the matter for hearing at the earliest convenient date after the parties attend to ensuring the record is complete.

C Mpame & Associates, applicant’s legal practitioners

Gwaunza & Mapota, respondent’s legal practitioners